By Dustin Riddle and Richard Bales
Two employees arrive at work half an hour late. It is both
employees’ first offense, and each is dealt with separately by the
same supervisor. The first employee tells the supervisor that
an alcoholic binge the preceding night caused her to
oversleep. The supervisor fires her, explaining that it is
company policy to terminate an employee who is late without a valid
excuse. The second employee tells the supervisor that he is
late for work because he overslept. This employee, however,
receives only a verbal warning and suffers no further
punishment.
Under traditional discrimination law, these facts would state a
straightforward case of discrimination against the first employee
on the basis of alcoholism. The employer’s proffered reason
for firing the first employee (oversleeping) would be considered a
pretext—a false reason given by the employer to hide the true
reason—and this would be proven by the employer’s decision not to
fire the otherwise similarly situated second employee. This,
however, is the minority approach to alcoholic-misconduct
cases. Under the majority approach, the case of the first
employee would be dismissed on the theory that alcohol-related
misconduct is not “Because of the Disability.”
This article argues for a third approach: an employer’s duty to
reasonably accommodate an alcoholic employee should arise when the
employer suspects that the employee’s misconduct is
alcohol-related, and yet the employer should be permitted to give
an alcoholic employee a “firm choice” between rehabilitative
treatment and termination.